Two years after the right to disconnect became law, someone finally tested it. On 19 August 2026 the South Australian Employment Tribunal handed down its decisions in Elliot v Mcguire [2026] SAET 107 and Kalleske v Mcguire [2026] SAET 106. Deputy President Stephen Lieschke found that a salon owner who sent her teenage apprentices Snapchat and TikTok videos outside their hours, made their next shift hostile when they did not reply, kept calling one of them while she was having urgent medical treatment, and phoned that worker's mother to ask about her condition, had not breached anybody's right to disconnect.The employer didn’t even turn up to either hearing.

Amelia Elliot and Jessica Kalleske both worked at Eco Hair Room, a small South Australian salon owned by Tanika McGuire. They brought separate claims for underpayment and for breaches of the right to disconnect term in the Hair and Beauty Industry Award 2020, which carries a contravention of section 45 of the Fair Work Act.

Elliot was 16 when she started. She says she was rarely paid properly, sometimes handed cash in an envelope, and only added to the payroll months after she began work. She was paid the apprentice rate during periods when she was not an apprentice. Her shifts were set late or changed at short notice. She was expected to arrive early to open up, worked without time in lieu, and regularly missed her meal and rest breaks. Her leave was never paid out when she resigned. Her claim came to about $4,500. She obtained a default order requiring payment by 10 April 2026 and received nothing.

Kalleske worked there for 16 months. Her money claim produced default orders on 11 March 2026 for $13,829 in unpaid wages and superannuation compensation, plus $968 in pre-judgment interest. The employer did not pay that either, or acknowledge the order.

On the after-hours contact, Elliot gave evidence that McGuire frequently sent her Snapchat and TikTok videos, mostly about the owner's social life and sometimes about non-urgent work. If she had not replied by her next shift, McGuire would be in a bad mood and would ignore her. On one occasion Elliot was told to take the salon phone home over a long weekend and take messages, unpaid. She took the phone and said she would not be monitoring it.

Kalleske described a consistent pattern of contact on her days off, while she was at trade school, and while she was sick or on leave. If one apprentice did not answer, the owner would start working through the others. In her words, the contact "created an ongoing expectation of availability and contributed to stress". When she was undergoing urgent medical treatment, she supplied medical certificates and asked for privacy. The calls and messages continued, and McGuire rang her mother trying to find out what was wrong with her.

Lieschke accepted almost all of this. He accepted that Elliot felt pressure from anticipating she would be ignored and would face a bad mood the next day. He accepted that Kalleske found the contact unpleasant and intrusive and felt pressure to respond. He accepted that the behaviour discouraged both apprentices from switching off.

Then he found there was no breach, because section 333M protects a worker's ability to ignore contact, and the question is whether the employer directly or indirectly stopped her from ignoring it. Elliot had managed to refuse the phone monitoring request without any consequence following. Neither woman was disciplined for going quiet. Discouragement fell short of prevention, so the claims failed. On that reading the clause only bites where an employer has threatened or taken some form of disciplinary action against a worker for going quiet.

An apprentice is tied to one employer. That employer controls her hours, signs off on her training, decides what she gets to practise, and determines whether she finishes her trade at all. The right to disconnect is a workplace right under the Fair Work Act. What the evidence describes is an employer making the workplace hostile for a 16-year-old because she exercised it, and doing so in the form that a workplace of that size allows: the whole of her next shift spent under the boss's displeasure. Everyone in that room understands what it means. Kalleske understood it well enough to describe an ongoing expectation of availability. Elliot understood it well enough to feel the pressure before the shift even started.

The Tribunal wanted a demonstrable consequence attached to non-response. There was one running through the entire case. These two women were not being paid. Elliot was handed cash in envelopes and shorted thousands of dollars. Kalleske was owed nearly $14,000 and still has not seen it, despite a court order. A workplace where the employer withholds wages, ignores default orders and does not bother attending the hearing is a workplace where consequences are delivered informally, off the record and without a paper trail. The legal test asks for the paper trail. Bosses like this one never generate one.

Every other serious contravention in both cases was proven, and the Tribunal found the conduct was knowing. Penalties are still to be determined. So we have an employer found to have knowingly ripped off two teenagers, and the same set of facts produced a finding that their right to disconnect was intact.

The design of the provision does the rest. The Fair Work Commission cannot order a cent in a right to disconnect dispute. Stop orders exist for workers who are still in the job and can show the behaviour will continue, which rules out anyone who has already left, and most people in a workplace like this leave. What remains is a general protections claim, which needs adverse action, which brings you back to needing the disciplinary letter your boss was never going to write.

The Commission has now postponed its own review of the provisions for at least 12 months because there is not enough case law to review. A test case listed in April 2026 settled on the morning of the hearing. Commentators read the silence as evidence the law is working. Read it the other way. The workers with the least ability to bring a claim are the ones the right was sold to, young, isolated, in small workplaces, on training wages, with no delegate, no union coverage on site and no idea the award clause exists.

McGuire had an order against her for $13,829 plus interest and paid none of it. She had a second order with a deadline of 10 April 2026 and ignored that one as well. She did not attend either hearing. If two court orders for money she legally owed a pair of teenagers produced nothing, a stop order telling her to go easy on the Snapchat videos was never going to reach her. Orders only work on an employer who knows that there will be considerable consequences for their actions.

On a job, that something is the crew. Out-of-hours contact stops when the workers who get contacted decide together that it stops, and when the boss learns that leaning on one of them produces a response from all of them.

That last piece is exactly what the law can’t supply, and these decisions show why. Elliot did refuse, She took the salon phone home and told her boss she would not be monitoring it, at 16, with no one behind her. The Tribunal then used her nerve as proof that nothing needed fixing, because a worker who successfully ignores her employer has not been prevented from ignoring her employer. Individual courage became the evidence that no protection was required.

Isolation is the harder problem here, and it is the one the right to disconnect was supposedly written for. A salon with four staff, a cafe, a small workshop: these are workplaces where an apprentice cannot build a majority against the person who signs off her trade. What works there is organisation that crosses the shopfront. Apprentices in the same trade, in the same city, comparing what their bosses do, sharing what the award actually says, and backing each other when one of them pushes back. An apprentice who knows twenty others in her trade is in a different position from one who only knows her boss.

There are also levers stronger than section 333M sitting unused. After-hours contact that produces an expectation of constant availability is a psychosocial hazard, and work health and safety law puts a duty on the employer to eliminate or minimise it. That system gives elected health and safety representatives powers the Fair Work Act does not give an individual apprentice, and it does not require anyone to prove they were punished in writing. Where workers have bargained an agreement, contact rules belong in it, priced and dated, so the obligation costs the employer something.

We asked Parliament for a right to switch off, What came back is enforceable only against an employer careless enough to put the punishment in writing, which leaves every worker whose boss punishes her through moods, rosters and the atmosphere of the next shift exactly where she started. The work of stopping after-hours contact sits where it has always sat, with workers who decide together what they will accept and then hold that position as a group.

Sources

•       Elliot v Mcguire [2026] SAET 107 (19 August 2026)

•       Kalleske v Mcguire [2026] SAET 106 (19 August 2026)

•       Fair Work Act 2009 (Cth) ss 45, 333M, 333N

•       Hair and Beauty Industry Award 2020

•       Lawyers Weekly, 7 September 2026

•       Australian HR Institute, 8 September 2026

•       Cooper Grace Ward, 10 September 2026